Scalia: ‘So-called torture’ cannot be ruled out

updated 8:35 p.m. ET Feb. 13, 2008

LONDON - A member of the Supreme Court said in an interview broadcast in Britain this week that interrogators can inflict pain to obtain critical information about an imminent terrorist threat.

Justice Antonin Scalia's statements weren't the first — or second or even third — time he has commented on a legal controversy that ultimately could be settled by the Supreme Court.

If past practice is any guide, Scalia won't let his remarks or his critics' complaints stop him from taking part in the court's work.

Scalia, in his 22nd year on the high court, is the most outspoken of the nine justices and the one who most seems to relish taking on his opponents in public.

"At times, Justice Scalia seems to follow Oscar Wilde's rule that the only way to be rid of temptation is to yield to it," said Jonathan Turley, a law professor at George Washington University. "He is a brilliant jurist, even if you don't agree with his views. His greatest liability has always been a lack of self control when it comes to public statements."

‘Stick something under the fingernail’
In London recently, Scalia sat down with British Broadcasting Corp. radio for a lengthy interview that touched on several topics, including harsh U.S. interrogation techniques that have drawn criticism at home and around the world.

Scalia said aggressive interrogation techniques — which he referred to generally as "so-called torture" — could be appropriate to learn where a bomb was hidden shortly before it was set to explode or to discover the plans or whereabouts of a terrorist group.

"It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that," Scalia said in an interview aired Tuesday.

Scalia said that determining when physical coercion could come into play was a difficult question. "How close does the threat have to be? And how severe can the infliction of pain be? I don't think these are easy questions at all, in either direction," he told the BBC's "Law in Action" program.

U.S. interrogation techniques, including waterboarding, have been the subject of growing debate in the United States, and could play a role in the military trials of six men charged in connection with the Sept. 11 attacks. The issue also could find its way to the Supreme Court.

Scalia, visiting London during a break in the court's calendar, said practices prohibited by the Constitution in the context of the criminal justice system, including indefinite detention, are readily allowed in other situations, such as when a witness refuses to answer a question in court.

Other controversial statements
It wasn't his first foray into such a controversy.

In 2006, a few weeks before the court heard arguments over the rights of detainees at Guantanamo Bay, Cuba, Scalia told an audience in Switzerland that the Constitution doesn't protect foreigners who are held there.

"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. Give me a break," Scalia said.

He ignored a request from five retired generals to withdraw from the case and dissented from a ruling in favor of the detainees. Two years earlier, Scalia also dissented in the court's first decision extending some legal rights to the Guantanamo prisoners.

Recusals are personal, and justices decide themselves whether they have conflicts in cases. They generally don't say why they are not taking part in a case. It is rare for a justice to take himself out of a case because of such public comments.

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